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Aboriginal Title and Private Property John Borrows
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 71 (2015) Article 5 Aboriginal Title and Private Property John Borrows Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Borrows, John. "Aboriginal Title and Private Property." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 71. (2015). http://digitalcommons.osgoode.yorku.ca/sclr/vol71/iss1/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. Aboriginal Title and Private Property John Borrows* Q: What did Indigenous Peoples call this land before Europeans arrived? A: “OURS.”1 I. INTRODUCTION In the ground-breaking case of Tsilhqot’in Nation v. British Columbia2 the Supreme Court of Canada recognized and affirmed Aboriginal title under section 35(1) of the Constitution Act, 1982.3 It held that the Tsilhqot’in Nation possess constitutionally protected rights to certain lands in central British Columbia.4 In drawing this conclusion the Tsilhqot’in secured a declaration of “ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land”.5 These are wide-ranging rights. -
Studying Indigenous Politics in Canada: Assessing Political Science's Understanding of Traditional Aboriginal Governance
Studying Indigenous Politics in Canada: Assessing Political Science's Understanding of Traditional Aboriginal Governance Frances Widdowson, Ezra Voth and Miranda Anderson Department of Policy Studies Mount Royal University Paper Presented at the 84th Annual Conference of the Canadian Political Science Association University of Alberta, Edmonton, Alberta, June 13-15, 2012 In the discipline of political science, the importance of understanding the historical development of political systems is recognized. A historical sequence of events must be constructed and analyzed to determine possible causes and effects when studying politics and government systematically. Introductory political science textbooks lament the minimal historical understanding that exists amongst the student body because it is maintained that those “without a historical perspective are adrift intellectually. They lack the important bearings that make sense of Canada‟s unique history, as well as the development of Western civilization and the rise and 1 fall of other civilizations”. Historical understanding is particularly important in the study of indigenous politics in Canada, where there is a constant attempt to link modern and traditional forms of governance. Understanding aboriginal traditions is essential for achieving aboriginal-non-aboriginal reconciliation, and many political scientists argue that misrepresentations of pre-contact indigenous governance continue to perpetuate colonialism. This makes it important to ask how aboriginal political traditions are being -
YORK STUDENT Welcome to York Maddy Chose York for Its Desirable Toronto Location, Multicultural Environment and Extensive Course Offerings
BEING A YORK STUDENT Welcome to York Maddy chose York for its desirable Toronto location, multicultural environment and extensive course offerings. “York really gave me the freedom to pursue all of my passions, allowing me to take an interdisciplinary approach to my studies,” she says. “I love that I can combine all of my passions and interests into one major.” As an international student, she especially appreciated the welcoming vibe of the large, beautiful and diverse campus. “One of the most profound parts of York, in my opinion, As our closest neighbour, the York University is Canada’s leading interdisciplinary is that it gives you the United States plays an integral teaching and research university, offering a modern experience to be a well- role in life in Canada and at rounded world citizen, which academic experience at both the undergraduate and York. Since our countries are is necessary in this globalized graduate levels in Toronto — Canada’s financial hub so closely tied, York maintains 21st century.” and most international city. York’s Keele campus is excellent relationships with a a self-contained community and a global centre for After graduation, Maddy plans number of American academic research and information. The Glendon campus, on to continue her education institutions. Our connections here at York by attending the other hand, is the only fully integrated bilingual Maddy MacKechnie with the United States range graduate school. campus of its kind in Canada, where students take From Wisconsin, USA from arts and academics to courses in English and French and often learn a third BA Hons. -
SEVEN GIFTS: REVITALIZING LIVING LAWS THROUGH INDIGENOUS LEGAL PRACTICE* by John Borrows†
SEVEN GIFTS: REVITALIZING LIVING LAWS THROUGH INDIGENOUS LEGAL PRACTICE* by John Borrows† CONTENTS Maajitaadaa (An Introduction) 3 Dibaajimowin (A Story) 4 Niizhwaaswi Miigiwewinan (Seven Gifts) 7 I Nitam-Miigiwewin: Gii’igoshimo (Gift One: Vision) 8 II Niizho-Miigiwewin: Gikinoo’amaage Akiing (Gift Two: Land) 9 III Niso-Miigiwewin: Anishinaabemowin (Gift Three: Language) 9 IV Niiyo-Miigiwewin: Dibaakonigewigamig (Gift Four: Tribal Courts) 10 V Naano-Miigiwewin: Anishinaabe Izhitwaawinan (Gift Five: Customs) 11 VI Ningodwaaso-Miigiwewin: Chi-Inaakonigewinan (Gift Six: Constitutions) 12 VII Niizhwaaso-Miigewewin: Anishinaabe Inaakonigewigamig (Gift Seven: Indigenous Legal Education) 13 Boozhoo nindinawemaaganidoog. Nigig indoodem. Kegedonce nindizhinikaaz. Neyaashiinigmiing indoonjibaa. Niminwendam ayaawaan omaa noongom. Miigwech bi-ezhaayeg noongom. Niwii-dazhindaan chi-inaakonigewin. Anishinaabe izhitwaawinan gaye. I am very grateful for the opportunity to be with you today. I am grateful to be amongst friends. I am thankful to have so many supportive colleagues with us and to know that I am amongst my Elders. Justice Harry LaForme taught me at Osgoode Hall Law School when I was a doctoral student there in the early ‘90s. I am also very grateful for the introductions we received from the Elders, the Chief, and representatives of the Métis Nation. I am thankful we live in a beautiful world. Standing in this room this morning, looking out over the water and seeing Nanaboozhoo, the Sleeping Giant, is a reminder of the power of this place. It was also great to be in the Fort William First Nation’s sugar bush yesterday, nestled between those two escarpments, as the light snow fell on us. It was a reminder of the beauty of the stories that can swirl around us this time of year. -
Towards Implementing the Truth and Reconciliation Commission's Calls to Action in Law Schools: a Settler Harm Reduction Ap
TOWARDS IMPLEMENTING THE TRUTH AND RECONCILIATION COMMISSION’S CALLS TO ACTION IN LAW SCHOOLS: A SETTLER HARM REDUCTION APPROACH TO RACIAL STEREOTYPING AND PREJUDICE AGAINST INDIGENOUS PEOPLES AND INDIGENOUS LEGAL ORDERS IN CANADIAN LEGAL EDUCATION SCOTT J. FRANKS A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS GRADUATE PROGRAM IN LAW OSGOODE HALL LAW SCHOOL YORK UNIVERSITY TORONTO, ONTARIO August 2020 © Scott J. Franks, 2020 Abstract Many Canadian law schools are in the process of implementing the Truth and Reconciliation Commission’s Call to Actions #28 and #50. Promising initiatives include mandatory courses, Indigenous cultural competency, and Indigenous law intensives. However, processes of social categorization and racialization subordinate Indigenous peoples and their legal orders in Canadian legal education. These processes present a barrier to the implementation of the Calls. To ethically and respectfully implement these Calls, faculty and administration must reduce racial stereotyping and prejudice against Indigenous peoples and Indigenous legal orders in legal education. I propose that social psychology on racial prejudice and stereotyping may offer non- Indigenous faculty and administration a familiar framework to reduce the harm caused by settler beliefs, attitudes, and behaviors to Indigenous students, professors, and staff, and to Indigenous legal orders. Although social psychology may offer a starting point for settler harm reduction, its application must remain critically oriented towards decolonization. ii Acknowledgments I have a lot of people to acknowledge. This thesis is very much a statement of who I am right now and how that sense of self has been shaped by others. -
Recovering Canada: the Resurgence of Indigenous Law
RECOVERING CANADA: THE RESURGENCE OF INDIGENOUS LAW Canada is ruled by a system of law and governance that largely obscures and ignores the presence of pre-existing Indigenous regimes. Indige- nous law, however, has continuing relevance for both Aboriginal peoples and the Canadian state. In this in-depth examination of the continued existence and application of Indigenous legal values, John Borrows suggests how First Nations laws could be applied by Canadian courts, while addressing the difficulties that would likely occur if the courts attempted to follow such an approach. By contrasting and com- paring Aboriginal stories and Canadian case law, and interweaving polit- ical commentary, Borrows argues that there is a better way to constitute Aboriginal-Crown relations in Canada. He suggests that the application of Indigenous legal perspectives to a broad spectrum of issues will help Canada recover from its colonial past, and help Indigenous people recover their country. Borrows concludes by demonstrating how Indige- nous peoples' law could be more fully and consciously integrated with Canadian law to produce a society where two world-views can co-exist and a different vision of the Canadian constitution and citizenship can be created. JOHN BORROWS is Professor and Law Foundation Chair in Aboriginal Justice at the University of Victoria. This page intentionally left blank JOHN BORROWS Recovering Canada: The Resurgence of Indigenous Law UNIVERSITY OF TORONTO PRESS Toronto Buffalo London ) University of Toronto Incorporated 2002 Toronto Buffalo London Printed in Canada Reprinted 2006, 2007 ISBN 0-8020-3679-1 (cloth) ISBN 0-8020-8501-6 (paper) © Printed on acid-free paper National Library of Canada Cataloguing in Publication Borrows, John, 1963- Recovering Canada : the resurgence of Indigenous law /John Borrows. -
A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education Natasha Bakht
Osgoode Hall Law Journal Volume 45, Number 4 (Winter 2007) Article 4 Law and Feminism Guest Editor: Mary Jane Mossman Counting Outsiders: A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education Natasha Bakht Kim Brooks Gillian Calder Jennifer Koshan Sonia Lawrence Osgoode Hall Law School of York University, [email protected] See next page for additional authors Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Part of the Legal Education Commons Special Issue Article Citation Information Bakht, Natasha; Brooks, Kim; Calder, Gillian; Koshan, Jennifer; Lawrence, Sonia; Mathen, Carissima; and Parkes, Debra. "Counting Outsiders: A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education." Osgoode Hall Law Journal 45.4 (2007) : 667-732. http://digitalcommons.osgoode.yorku.ca/ohlj/vol45/iss4/4 This Special Issue Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. Counting Outsiders: A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education Abstract In response to anecdotal concerns that student enrollment in "outsider" courses, and in particular feminist courses, is on the decline in Canadian law schools, the authors explore patterns of course enrollment at seven Canadian law schools. Articulating a definition of "outsider" that describes those who are members of groups historically lacking power in society, or traditionally outside the realms of fashioning, teaching, and adjudicating the law, the authors document the results of quantitative and qualitative surveys conducted at their respective schools to argue that outsider pedagogy remains a critical component of legal education. -
LEARNING INDIGENOUS LAW: REFLECTIONS on WORKING with WESTERN INUIT STORIES by Rebecca Johnson* & Lori Groft†
LEARNING INDIGENOUS LAW: REFLECTIONS ON WORKING WITH WESTERN INUIT STORIES by Rebecca Johnson* & Lori Groft† CONTENTS I Introduction 118 II A Methodology for Learning Indigenous Law from and with Stories—Working with Partner Communities 121 2017 CanLIIDocs 3498 III A Methodology for Learning Indigenous Law from and with Stories—Working with Stories Alone 125 A. An Overview 125 B. Beginning with a Story: The Wife Killer 126 C. BriefingThe Wife Killer 129 1. The Problem/Issue (What is the Main Human Problem the Story Focusses On?) 129 2. The Facts (Which Facts Matter?) 129 3. Decision/Resolution (What is Decided, or How is the Issue Resolved?) 130 4. Reasoning (What Explanation (Said or Unsaid) is Given for the Decision/ Resolution?) 130 5. Bracketing (Are There Unresolved Questions That Could Be Bracketed for Further Study?) 131 D. Synthesizing the Cases 132 1. Overview of Our Process 132 2. Exploring the Synthesis through the Lens of The Wife Killer 134 i. Legal Processes 134 ii. Legal Responses 136 iii. Legal Principles 137 iv. Legal Obligations 138 v. Legal Rights 140 IV Conclusion: Returning to the Stories with a Question 140 * BMus, LLB, MBA, LLM, SJD. Johnson is Professor of Law, University of Victoria. † MSc, JD. Groft is an affiliate of the Indigenous Law Research Unit, University of Victoria. (2017) 2:2 Lakehead Law Journal Johnson & Groft I INTRODUCTION As Jutta Brunnée and Stephen Toope remind us, law is constituted and maintained through ongoing engagement.1 Taking this to be true, we believe that any commitment to law entails a commitment to continue to engage with it. -
Reconciliation and the Supreme Court: the Opposing Views of Chief Justices Lamer and Mclachlin
Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2003 Reconciliation and the Supreme Court: The Opposing Views of Chief Justices Lamer and McLachlin Kent McNeil Osgoode Hall Law School of York University, [email protected] Source Publication: Indigenous Law Journal. Volume 2, Issue 1 (2003), p. 1-26. Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Recommended Citation McNeil, Kent. "Reconciliation and the Supreme Court: The Opposing Views of Chief Justices Lamer and McLachlin." Indigenous Law Journal 2.1 (2003): 1-26. This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. Reconciliation and the Supreme Court: The Opposing Views of Chief Justices Lamer and McLachlin KENT MCNEIL' I INTRODUCTION 2 II CHIEF JUSTICE LAMER'S VIEWS 4 III MCLACHLIN J.'S VIEWS BEFORE SHE BECAME CHIEF JUSTICE 10 IV ANALYSIS OF THESE DIVERGENT VIEWS OF RECONCILIATION 17 V FURTHER DEVELOPMENTS: DELGAMUUKW AND MARSHALL 19 VI CONCLUSION 23 The Supreme Court of Canada has said that Aboriginal rights were recognized and affirmed in the Canadian Constitution in 1982 in order to reconcile Aboriginalpeoples'prior occupation of Canada with the Crown's assertion of sovereignty. However, sharp divisions appeared in the Court in the 1990s over how this reconciliation is to be achieved Chief Justice Lamer, for the majority, understood reconciliation to involve the balancingof Aboriginal rights with the interests of other Canadians.In some situations,he thought this couldjustify the infringement of Aboriginal rights to achieve, for example, economic and regional fairness. -
Harmful Impacts: the Reliance on Hair Testing in Child Protection Report of the Motherisk Commission the Honourable Judith C
Harmful Impacts: The Reliance on Hair Testing in Child Protection Report of the Motherisk Commission The Honourable Judith C. Beaman Commissioner February 2018 This Report is available at Motherisk Commission (https://motheriskcommission.ca). © 2018 Ministry of the Attorney General ISBN 978-1-4868-1372-8. Print. [English]. ISBN 978-1-4868-1378-0. Print. [Cree]. ISBN 978-1-4868-1373-5. PDF. [English]. ISBN 978-1-4868-1379-7. PDF. [Cree]. ISBN 978-1-4868-1374-2. Print. [French]. ISBN 978-1-4868-1380-3. Print. [Oji-Cree]. ISBN 978-1-4868-1375-9. PDF. [French]. ISBN 978-1-4868-1381-0. PDF. [Oji-Cree]. ISBN 978-1-4868-1376-6. Print. [Mohawk]. ISBN 978-1-4868-1382-7. Print. [Ojibway]. ISBN 978-1-4868-1377-3. PDF. [Mohawk]. ISBN 978-1-4868-1383-4. PDF. [Ojibway]. |2| Harmful Impacts: The Reliance on Hair Testing in Child Protection Report of the Motherisk Commission To recognize the broad harm caused by the unreliable Motherisk hair testing, the Commission considered “affected persons” to include children, siblings, biological parents, adoptive parents, foster parents, extended families, and the bands or communities of Indigenous children. This Report is dedicated to everyone who was affected by the testing. February 26, 2018 The Honourable Yasir Naqvi Attorney General of Ontario Ministry of the Attorney General McMurtry-Scott Building 720 Bay Street, 11th Floor Toronto, ON M7A 2S9 Re: Motherisk Commission Dear Minister: With this letter, I am delivering the Report of the Motherisk Commission, Harmful Impacts: The Reliance on Hair Testing in Child Protection. Establishing the Motherisk Commission served as public acknowledgement that the unreliable hair testing by the Motherisk Drug Testing Laboratory deeply affected Ontario families. -
2426Y-Osgoode AR 05/06 REV4
ANNUAL REPORT ACADEMIC YEAR 2005-2006 osgoode OFFICE OF THE DEAN Office of the Dean Osgoode Hall Law School of York University 4700 Keele Street Toronto, Ontario M3J 1P3 Tel: 416-736-5199 Fax: 416-736-5251 E-mail: [email protected] www.osgoode.yorku.ca 2005-2006 Officers Dean Patrick J. Monahan BA (Ottawa), MA (Carleton), LLB (Osgoode), LLM (Harvard), of the Bar of Ontario Associate Dean Until December 2005 Our mission is to contribute to new knowledge about the Janet Walker BA Hons , MA (York), LLB (Osgoode), Dphil (Oxon), of the Bar of Ontario law and the legal system by being a centre for thoughtful Associate Dean and creative legal scholarship, to provide an outstanding From January 2006 professional and liberal education to our students so that Robert Wai they can assume positions of leadership in the legal BCom (McGill), MPhil (Oxford), LLB (British Columbia), SJD (Harvard), of the Bars of British Columbia and New York profession, among legal academics and in all aspects of Associate Dean, Research and Graduate Studies public life, and to serve Canadian society and the world in Allan C. Hutchinson ways that further social justice. LLM (Manchester), LLD (Manchester), Barrister of Gray’s Inn, and of the Bar of Ontario Assistant Dean, First Year Per jus ad justitiam: Through law to justice Colleen M. Hanycz BA (Toronto), LLB (Dalhousie), LLM (Osgoode), PhD (Osgoode) Assistant Dean, Student Services Gina Alexandris LLB (Osgoode) Chief Law Librarian Nicholas Pengelley BA (LS) (South Australian Institute of Technology), DipL (Barristers Admission Board, Supreme Court of New South Wales), LLM (Monash University), PhD (Monash University) Executive Officer Richard Ooi BAS Hons Marketing (York) Director, Office of Advancement Anita Herrmann BA Hons History (York) Director, Osgoode Professional Development Victoria Watkins BSc (Toronto), LLB (Toronto) Director, Information Technology Services Kurt Binnie BA Hons (York) Executive Assistant to the Dean Mya Bulwa BA (Western), LLB (Osgoode) Table of Contents Introduction . -
Realizing Indigenous Law in Co-Management
JANE GLASSCO NORTHERN FELLOWSHIP Realizing Indigenous Law in Co-Management Killulark Arngna'naaq, Heather Bourassa, Don Couturier, Kaviq Kaluraq, Kelly Panchyshyn CONTENTS 4 Authors 9 Introduction 9 Background 11 Challenges in Co-Management 14 Opportunities to Reflect on and Transform Co-management Systems 16 Summary of Recommendations 17 SYSTEMIC REFORM THROUGH LEGISLATIVE AMENDMENT OR PROTOCOL RATIFICATION (WHO DECIDES) 21 CULTURAL TRANSFORMATION (HOW DECISIONS ARE MADE, HOW RESOURCES ARE MANAGED) 25 EXPLICIT RELIANCE ON INDIGENOUS LAW IN DECISION-MAKING (WHAT IS DECIDED) 30 Conclusion 32 Bibliography 33 Endnotes The Gordon Foundation undertakes research, leadership development and public dialogue so that public policies in Canada reflect a commitment to collaborative stewardship of our freshwater resources and to a people-driven, equitable and evolving North. Our mission is to promote innovative public policies for the North and in fresh water management based on our values of independent thought, protecting the environment, and full participation of indigenous people in the decisions that affect their well-being. Over the past quarter century The Gordon Foundation has invested over $37 million in a wide variety of northern community initiatives and freshwater protection initiatives. The Jane Glassco Northern Fellowship is a policy and leadership development program that recognizes leadership potential among northern Canadians who want to address the emerging policy challenges facing the North. The 18-month program is built around four regional gatherings and offers skills training, mentorship and networking opportunities. Through self-directed learning, group work and the collective sharing of knowledge, Fellows will foster a deeper understanding of important contemporary northern issues, and develop the skills and confidence to better articulate and share their ideas and policy research publicly.